A Supreme Court Conversation

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

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I agree with you both that to even begin to understand what this case means going forward, you'd need to put yourself in Justice Kennedy's brain. And Kennedy is squeezed between two worlds he cannot quite bear: He can't allow that school districts must simply live with the status quo. But he can't tolerate a world in which children face "differential treatment based on a classification that tells each student he or she is to be defined by race."

Stuart, you offer the possibility of a class-based system, and Kennedy offers a host of other mechanisms—site selection, attendance zones—anything but the admittedly clunky "white/nonwhite" systems he sees in Seattle and Louisville. So, to paraphrase/mangle the chief justice's plurality opinion, Justice Kennedy still wants Americans to be able to address racial imbalances; he just doesn't want them to do so using systems that expressly account for race.

There are lots of proxies for race that would avoid such awkward labeling—Stuart's socioeconomic model being one—but as you may recall from our discussion of the Grutter ruling, Walter, I objected to the "diversity" rationale for affirmative action at Michigan then, and I am uncomfortable with using fictions to remedy real problems now. We have a serious problem of racial resegregation in America. Why call the program to remedy it something else? As Justice Breyer observes in his dissent, of course there is a "cost in applying a state-mandated label … but that cost does not approach, in degree or in kind, the terrible harms of slavery, the resulting caste system, and 80 years of legal racial segregation."

One of the reasons Justice Breyer's dissent strikes you as "alarmist, accusatory, you-are-killing-Brown," Stuart, is that regardless of the net effect of this decision, the Roberts plurality really is killing Brown. Roberts isn't merely using Brown to support a decision that everyone knows to be wholly not in the spirit of Brown. He's also attacking—and I use that word advisedly—the whole constitutional groundwork that supported Brown. It's hard to read Roberts' opinion as anything other than that broad, although he masks it as "the familiar and well-established analytic approach of strict scrutiny to evaluate the plans at issue today, an approach that in no way warrants the dissents cataclysmic concerns."

I'm not surprised the dissenters are pissed. What Roberts holds out as a dispassionate, mechanistic, and apolitical legal project is in fact an ideological and immoderate attack on a principle they believed to be inviolate. And I imagine it's insulting after a while for the dissenting justices to be cast in the role of irrational hysterics. Someone pointed me today to the most amazing portion of Breyer's dissent, in which he says the problem with the plurality's logic "lies in its overly theoretical approach to case law, an approach that emphasizes rigid distinctions between holdings and dicta in a way that serves to mask the radical nature of today's decision. Law is not an exercise in mathematical logic."

There is only one way in which the chief justice's famous comparison of justices to umpires still holds after today's plurality opinion: It turns out justices and umpires both wear masks.